Allocation of resources in the NHS Flashcards
NHS beginning
brought into existence via national health service act 1946
intended to provide comprehensive healthcare to all, irrespective of ones ability to pay
healthcare ‘from cradle to grave’
since 2014 -many believe major funding problem in NHS - victims of own success as life expectancy has increased, patient expectations, technology increasing so more treatments available
impact of COVID-19
‘build back better’ government paper march 2022
need to treat covid patients = worsening wait time for non covid care
prior 9/10 were waiting fewer than 25 wks for treatments - now 44 wka
secretary of state for health and social care
NHS act 2006 - section 1 and section 3
now amended - Non elected professional bodies called clinical commissioning groups created and took over primary duty to commission and provide health services across geographical reasons
2022 Health and Care Act - abolished CCGs and functions absorbed into newly integrated care boards
Amendments to 2006 act may have diluted duties of secretary of state from a duty to provide to only promote comprehensive health service
NHS England and ICBS
NHS England:
Estab the health and social care act 2012 (under the NHS commissioning board)
Today responsible for allocating resources to integrated care boards
For 2022/23 £102.8 billion of its £153 billion budget was allocated to ICBs
Oversees activities of ICBs and provides national leadership
ICBs: integrated care boards = statutory bodies that are resp for planning and funding most NHS services
Estab by the health and care act 2022
There are 42 ICBs across england
wide discretion as to how resources should be allocated
ICPs: integrated care partnerships - statutory committees that bring together broad set of partners (local gov, voluntary sector etc) to develop a health and care strategy for their area
together ICBs and ICPs = ICSs - integrated care systems
National Institute for Health and Care Excellence (NICE)
founded april 1999
prior drug funding was on a local lvl so some treatment may be available in one hospital and not the other
intended to provide national guidance as to what medical treatments work and are cost effective for use in NHS
doesnt licence medicines - medicines and healthcare products regulatory agency (MHRA) and european medicines agency (EMA) does this
carries out, inter alia, ‘technology appraisals’, i.e. recommendations on the use of new medicines and treatments within the NHS based on their cost-effectiveness.
These can be medicines (drugs), medical devices, diagnostic techniques, surgical procedures, and health promotion activities.
- After appraising a treatment, NICE can recommend:
- Unrestricted use.
- Restricted use to a particular class of patients.- only some patients = eligible
- Restricted use to clinical research.
- Treatment should not be used in NHS.
technology apprasals are manadatory - * Even when NICE recommends a given treatment be available in principle in NHS doesn’t nec mean doctor has duty to prescribe treatment to patient - still falls in clinical discretion of doctor
NHS is obliged to make NICE appraised treatments available in principle norm within 3 months of a decision being reached
General Medical Council
licences all med doctors to allow them to practice and produces guidelines
”you must make the care of your patient your first concern”.
NICE guidelines do not override the GMC guidelines
A right to healthcare?
Negative right - freedom from unlawful interference
positive right - a right to receive a benefit/treatment
article 2 HRA 1998 - may arg right to medical treatment = extension to a right to life
“Of all human rights, most people would accord the most precious place to the right to life itself.” (Re B)
WHO constitution and Article 25 UDHR = states there is a positive right to healthcare
WHO = ‘highest attainable standard of health’ - accepting some member states have different lvls of resources at their disposal to provide health care
NHS constitution - right to treatment?
principle 1 - NHS provides comprehensive service available to all irrespective of gender, race, disability, age etc - but NHS con not legisaltion only an internal standard
- Treatment decisions involve protecting both negative and positive rights.
- Medical professionals must not unlawfully interfere with patients health and life (e.g. battery) when carrying out treatments, but they also respond to patients positive entitlements by:
- saving life
- alleviating pain and suffering
- enhancing quality of life
- conferring medical benefits
- prevent ill health
But positive rights are generally more difficult to enforce
Different levels of healthcare rationing
MACRO: how much of the national budget should be allocated to health/the NHS? As opposed to other sectors - very broad
MESO: within the NHS, how much should be spent on different types of healthcare? - health sector as a whole, NICE and ICBs feed into this level
MICRO: which individual patients should be able to access a given treatment? - individual levels, can be created by ICBs (what treatments to certain patients) and doctors
Meso: which treatments to offer on NHS? - when it comes to rationing healthcare, what actually is ill health requiring medical treatment? - should the NHS pay for the below:
- Tattoo removal?
- Fertility treatments?
- Symptoms of ageing, such as menopause?
- Gender re-assignment?
- Aesthetic problems, e.g. crooked teeth or blemishes on skin?
when it comes to rationing, what does fair/equal treatment look like?
- Dependants? - Is it fair to provide treatment to people with caring responsibilities over those without dependents?
- Age? - Is it fair to provide treatment to younger people instead of older people?
- Personal responsibility?- Is it fair to deprioritise those who are ‘responsible’ for their own illness? compared to inherited disease?
- Social utility? - Is it fair to prioritise socially ‘useful’ people, such as medical doctors, for treatment?
Ethical problems with rationing and The NHS’ general approach to resource allocation
Medical benefit? - how long they will live?
Quality of life before and after treatment?
Cost? - limit willing to spend on treatment - value you put on life?
Financial limit by reference to annual value of treatment?
Social factors: Age? Self-induced behaviour?
Waiting lists: - first come, first serve or the needs?
- Equality (NHS Constitution Principle 1.)
Treat patients equally to those with equivalent health need. - irrespective of ppls characteristics but in rationing it does not matter as how do you decide who gets what treatment? So Need is important - Non-Discriminatory: Article 14 ECHR
Which patients to treat (age, social utility, behaviour, etc.)?
· Need (NHS Constitution Principle 2.) - who needs the treatment the most?
- How to construct a hierarchy of needs?
- Distinction between life enhancing and life saving treatment?
- What is normal functioning? What is ill health?
· Maximising Health Gains (NHS Constitution Principle 6.) - in a cost effective manner, utilitarian approach
- QALY
QALYs
quality of life expressed up to one
1 = 1 perfect quality of life
0 = death
Quality of Life x Life Expectancy
QALY= After Treatment-Before treatment= 6-1=5
Before treatment
2 (years) x 0.5 (quality of life) = 1
After Treatment
6 (years) x 1 (quality of life) = 6
Cost per QALY= Treatment cost/QALY
Treatment Cost = £50.000, Cost per QALY = £50,000/5 = £10,000
NICE - general threshold for affordability in NHS = £20k per volume - if treatment costs 20k or below, likely to be funded
If treatment costs less than 20k per QUALY is not recommended by NICE reasons need to be given
When treat costs 20-30k per QUALY - factors for recommended treatment considered
When more than 30k unlikely to be funded unless compelling reasons in favour
Challenges to QALY approach
- Explicitly utilitarian – units of lifetime - ppls lives reduced to numerical values
- Discrimination against older patients and disabled patients
- Difficulties in objectively measuring quality of life - subjective so how can it be quantified
Modified approach for terminally ill patients
supplementary guidance to be used when dealings with cases of terminal illness - so far only applied to cancer meds
‘Appraising Life Extending, End of Life Treatments’ (2009), NICE sets out a modified approach in cases where:
Life expectancy less than 24 months can apply for funding for treatment where there is sufficient evidence that will give extension of life of 3 months or more.
This approach has resulted in a higher threshold, estimated at £50,000 per QALY.
cancer drug funds - for those who do not receive treatment, makes additional funding available for new treatments not appraised by NICE, Fixed budget and control of expenditure
However: application process revised in 2016
* Individual funding requests (IFRs) relating to cancer drugs will no longer be considered via the CDF process but NICEs normal appraisal process
* IFRs relating to cancer drugs now considered integrated within NICE process
NICE and social factors:
Age: Social Value Judgments, 6.3 - patients should not have treatments restricted due to age, could lead to age discrimination and cases with issues ab article 14, If treatment would benefit younger patients significantly more than older patients then age could be consideration
E.g. evidence that age is a good indicator for some aspect of patients’ health status and/or the likelihood of adverse effects of the treatment. NICE and social factors: personal conduct?
Social Value Judgments 6.6: - - issue on personal conduct, in general NICE does not take into consideration whether condition is self induced but where behaviour influences medical outcome then may be into account e.g. patient smoked throughout entire life and receiving treatment where smoking is linked may be reduced compared to someone who has never smoked or stopped smoking
E.g. Smoking? Drinking?
Public law duty
Section 1 of the National Health Service Act 2006, as amended by the Health and Social Care Act 2012 - duty to provide falls on ICB who has wide discretion rather than SoS
R (Burke) v General Medical Council and Others - competent patient who suffered from degenerative condition sought an advance assurance that doctors will continue to treat him even if no longer be in his best interest to prolong his life.
CoA held doctor = common law duty to treat a competent patient if doctor assumed resp for patient’s care
there is no generic right to (as opposed to refuse) treatment and no corresponding common law duty to provide it.
Only have a right in common law to treatments if some entity has already assumed resp for the provision of treatment
NHS Constitution
Principle 1: NHS provides a comprehensive service, available to all irrespective of gender, race, disability, age, sexual orientation, religion or belief. It has a duty to each and every individual that it serves and must respect their human rights… positive duty (not legislation so difficult to enforce this is challenging an allocation of resource decision)
Can you enforce political declarations?
GMC (General Medical Council) Guidance
Ethical guidance on good medical practice
“Good doctors work in partnership with patients and respect their rights to privacy and dignity. They treat each patient as an individual. They do their best to make sure all patients receive good care and treatment that will support them to live as well as possible, whatever their illness or disability.” - limited duty on doctors, only do their best
Not an absolute duty on doctors. - cant rely on this either when challenging decisions
Judicial Review
NHS = public body = subj to JR - policy that impact directly or indirectly on a patient can be challenged
illegality - e.g. failure to take into account relevant considerations/taking into account irrelevant considerations
irrationality - wednesbury’s unreasonableness
procedural impropriety - E.g. A failure to provide reasons for a decision (in certain contexts).
very little legislation which protects pos rights to health care
ICBs = wide discretion as to how they exercise stat duties
common law duties = limited to where doctors have already assumed resp for the provision of health care
Doctors = sig discretion as to how they exercise their duties
Legal routes by which patients challenge funding = limited , norm judicial review and HR claims
Rationing and the law: early failures
Early cases sought treatment which was already available in principle on the NHS, but there weren’t enough resources to give them access to the treatment immediately.
R v Secretary of State for Health, ex parte Hincks 1979
Concerned a challenge to a delay in hip replacement surgery.
R v Central Birmingham Health Authority, ex parte Walker 1987
Concerned a challenge to delay in heart surgery.
R v Central Birmingham Health Authority, ex parte Collier 1987
Concerned a challenge to postponement of 4 year old patient’s life-saving surgery, on account of a lack of beds.
Was the decision to delay treatment Wednesbury unreasonable?
“so outrageous in defiance of logic or accepted moral standards that no sensible person could have arrived at it” (Lord Diplock, GCHQ case)
the court would not substitute their own judgement for the judgement of those responsible for resource allocation. - doctors and NHS enjoy discretion in this decision making and delays were not irrational for courts to determine limits to that discretion had been breached
Rationing and the law: a potential shift?
R v Cambridge Health Authority, ex parte B - refusal to fund further treatment for a 10 yer old girl with leukaemia after unsuccessful bone marrow transplant, doctors believed she had weeks to live and additional treatment was not in best interests
father challenged decisions and at first successful - even if slim chance may work health auths should spend money and take chance
but health auth won appeal - Bingham - not appropriate role for courts to second guess how resources are best spent, discretion by decision makers found unreasonable in only exceptional circ
Impact of R v Cambridge DHA ex parte B [1995]
chief exec - helped ppl grasp reality that expectation and demand had now outstripped publicly funded systems ability to pay without regard to the opportunity cost
Rationing and the law: later successes
String of patients who sought treatments which were not regularly approved or not yet available on the NHS, not appraised by NICE but patients should receive as an exception, policy which denied the treatment they argued was unlawful and some cases were successful
R v North Derbyshire Health Authority, ex parte Fisher
MS patient whos doctor prescribed new expensive drug, health auth refused to fund it due to doubts over clinical effectiveness, seeking to limit its use to clinical trials only
national policies existed but not local so policies had to be made to manage the use and target which patients would benefit
although national policy did not have to be obeyed, it was just guidance, health auth were under a duty to have a regard to formulate their local policies and the NDHA did not have regard
Mr. Fisher’s claim was successful: the local policy declared unlawful, the decision to refuse funding for Mr. Fisher was quashed, and a mandatory order was issued, obliging the local health authority to formulate a new policy which gave proper effect to national guidance.
R v North and East Devon Health Authority, ex parte Coughlan
severely disabled woman moved to home and promised home for life but local health auth closed it and moved her to cheaper accom, claim = successful as clear and unambig promise - legitimate expectation so unfair and abuse of power to take it away
R v North West Lancashire Health Authority, ex parte A,D,G
3 trans women sought gender reassignment surgery after diag with gender identity dysphoria, local health auth deprioritised funding that had low clinical effectiveness - placed on same lvl as cosmetic plastic surgery
health auth had exception where there was overriding clinical need but did not accept reassignment surgery as treatment for dysphoria
* Held: health authority’s policy not to fund gender reassignment surgery was unlawful and irrational
as it failed to consider what was proper treatment of a recognised condition
CoA nothing inherently wrong with prioritising treatments but must look at nature and seriousness of each condition
R (on the application of Rogers) v Swindon NHS Primary Care Trust and another
Ms R = early stage breast cancer and prescribed Herceptin (currently unlicensed for early stage cancer) her PCT = policy for not funding unlicensed use of Herceptin, save in exceptional circumstances and she was not deemed exceptional
on appeal her claim was successful - policy claimed irrational - she was one of 20 eligible patients per year in her area
Rationing and exceptionality policies
can social factors be considered when developing an exceptionality policy
R (on the application of Condliff) v North Staffs PCT
obese man sought gastric surgery but fell outside his PRTs policy for funding surgery - refused because of his BMI
put into an individual funding request arg he should be considered on exceptionality ground but rejected
is a policy that only considers clinical factors in determining requests for funding unlawful and in breach of Art 8? (right to privacy and family life)
Article 8 of ECHR did not give rise to a positive duty on a statutory health care provider to consider non-clinical, social or welfare considerations wider than the comparative medical conditions and medical needs of different patients when deciding on the allocation of funding for medical treatment.
PCT in their ethical framework state that “Every decision we make to fund one treatment means that we are effectively taking a decision not to fund another treatment…as a result… effectiveness, equity and patient choice- must be carefully balanced”
